HEALTH PRACTITIONERS LEGISLATION AMENDMENT BILL 2000 Explanatory Notes

Queensland Bills Explanatory Notes

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HEALTH PRACTITIONERS LEGISLATION AMENDMENT BILL 2000

1 Health Practitioners Legislation Amendment HEALTH PRACTITIONERS LEGISLATION AMENDMENT BILL 2000 EXPLANATORY NOTES GENERAL OUTLINE Policy Objectives of the Bill The principal policy objective of the Bill is to make consequential and routine amendments to legislation administered by the Minister for Health relating to the regulation of health practitioners. Reasons why the legislation is necessary The Bill is necessary to finalise the development of the new legislative scheme for registered health practitioners. The scheme, which has been introduced in two stages, comprises the 13 health practitioner registration Bills1 (introduced in cognate with this Bill) and the Health Practitioners (Professional Standards) Act 1999 and the Health Practitioner Registration Boards (Administration) Act 1999. The need for the routine amendments was identified during drafting of the 13 health practitioner registration Bills and through feedback from those involved in the administration of the Health Practitioners (Professional Standards) Act. 1 In this document--"13 health practitioner registration Bills" means: Chiropractors Registration Bill 2000, Dental Practitioners Registration Bill 2000, Dental Technicians and Dental Prosthetists Registration Bill 2000, Medical Practitioners Registration Bill 2000, Medical Radiation Technologists Registration Bill 2000, Occupational Therapists Registration Bill 2000, Optometrists Registration Bill 2000, Osteopaths Registration 2000, Pharmacists Registration Bill 2000, Physiotherapists Registration Bill 2000, Podiatrists Registration Bill 2000, Psychologists Registration Bill 2000, Speech Pathologists Registration Bill 2000.

2 Health Practitioners Legislation Amendment Means of achieving objectives The Bill repeals the Medical Act and Other Acts (Administration) Act 1966 and amends the Health Practitioner Registration Boards (Administration) Act 1999, the Health Practitioners (Professional Standards) Act 1999 and the Indy Car Grand Prix Act 1990. Overall, the proposed amendments are-- · largely consequential to the two stage process for the introduction of health practitioner legislation (ie. the amendments could not have been made at the time the Health Practitioners (Professional Standards) Bill and the Health Practitioner Registration Boards (Administration) Bill were introduced) · predominantly technical, machinery or drafting in nature. Also, a substantial policy issue raised by the amendments is the insertion of a duty, under the Health Practitioners (Professional Standards) Act, for registrants to report to their board regarding convictions for indictable offences and convictions under the registration Acts of other states or countries; cancellations, suspensions or conditions imposed under registration Acts of other states or countries; and judgements or settlement of proceedings involving negligence. This duty will effectively increase the degree of public protection afforded by the legislation. The other amendments to the Health Practitioners (Professional Standards) Act include: · a reserve power for the Minister to appoint members of a professional panel of assessors under limited circumstances · clarification that where a registrant holds general registration and specialist registration or registration as a dental technician and registration as a dental prosthetist, action may be taken in respect of one or both types of registration. However, where the registrant's general registration or registration as a dental technician is suspended or cancelled, the registrant's specialist registration or registration as dental prosthetist is affected in the same way · a power for a board to disclose confidential information to a foreign regulatory authority where this is necessary for that authority to perform its functions (ie protection of the public in another state or country)

3 Health Practitioners Legislation Amendment · a power for a panel to delegate the undertaking of a pre-hearing conference to a panel member (currently the conference is undertaken by the entire panel or responsibility for the conference is delegated to the secretary) · insertion of various evidentiary provisions (including recognition of certain appointments and signatures) to facilitate the conduct of proceedings under the Act · insertion of a transitional provision to ensure that conditions imposed under the repealed provisions of the Medical Act 1939 are able to be reviewed under the Health Practitioners (Professional Standards) Act 1999. Estimated cost for Government implementation The Bill has no cost implications for Government. Consistency with Fundamental Legislative Principles With the exception of the issue discussed below, the Bill is consistent with fundamental legislative principles. Rights and liberties of individuals Clause 25 inserts sections 385A-C into the Act. These sections make it an offence for a registrant to fail to notify the board within 30 days of a conviction of an indictable offence or an offence against a corresponding law or the imposition of a disciplinary or other relevant action under a corresponding law. Also, a registrant who is a respondent to proceedings in court regarding negligence must not fail to notify the board within 30 days of the judgement in relation to those proceedings or any settlement of the proceedings. It is arguable that a requirement upon a registrant to notify the board of convictions, disciplinary orders and settlements and judgements compromises the rights of the registrant in that this information could be used by the board to take action against the registrant. However, the provisions are appropriate given the objects of the Act and the purposes of disciplinary action and disciplinary proceedings (ie to protect the public, uphold standards of practice and maintain public confidence in the health professions). The notification of these matters will enable a board to

4 Health Practitioners Legislation Amendment promptly identify potential patterns of sub-optimal practice with a view to taking disciplinary or other remedial action in the public interest. The provision, in so far as it deals with mandatory notification of indictable offences and disciplinary action, is akin to section 44 of the Education (Teacher Registration) Act 1988. Also, it should be noted that most of the information at issue, excluding the settlement of negligence matters, would already be in the public domain or would otherwise be accessible to boards (eg recorded on a publicly accessible register or accessible under section 37 of the schedule to the Mutual Recognition (Queensland) Act 1992). The requirement to notify the settlement of proceedings for negligence matters is based on South Australian and Victorian legislation and was recommended by the Commonwealth's Professional Indemnity Review. Overall, the provisions will ensure that the professional standards of the State's health practitioners are upheld to at least the same degree as occurs in other jurisdictions. Consultation In general, the issues addressed by this Bill were the subject of consultation as part of the Review of Medical and Health Practitioner Registration Acts. That consultation process occurred over a number years using multiple strategies detailed in the Explanatory Notes for the Health Practitioners (Professional Standards) Bill 1999. With respect to the substantial policy matter addressed by this Bill, key stakeholders (ie health practitioner registration boards, peak health professional associations, peak consumer organisations, the Health Rights Commission, etc) were provided with an opportunity to comment on an exposure draft of the provisions in March 2000. Additional consultation occurred with the Secretary of the Professional Conduct Review Panels, the Registrar of the Health Practitioner Tribunal and the Medical Board of Queensland during the preparation of this Bill.

5 Health Practitioners Legislation Amendment NOTES ON PROVISIONS PART 1--PRELIMINARY Clause 1 sets out the short title of the Act. Clause 2 provides for the Act to commence on a day fixed by proclamation. PART 2--HEALTH PRACTITIONER REGISTRATION BOARDS (ADMINISTRATION) ACT 1999 Clause 3 specifies that part 2 amends the Health Practitioner Registration Boards (Administration) Act 1999. Clause 4 omits the reference to the Medical Act and Other Acts (Administration) Act 1966 from the description of the legislative scheme in section 5. That Act is repealed by clause 34 of this Bill. Clause 5 inserts a new paragraph (d) into section 23(2) to remove any doubt that a board's duty to obtain all of its administrative and operational support from the Office of Health Practitioner Registration Boards does not affect the board's power under a health practitioner registration Act to appoint an inspector or a person to conduct a health assessment. PART 3--AMENDMENT OF HEALTH PRACTITIONERS (PROFESSIONAL STANDARDS) ACT 1999 Clause 6 specifies that part 3 amends the Health Practitioners (Professional Standards) Act 1999. Clause 7 omits the reference to the Medical Act and Other Acts Administration Act 1966 from the description of the legislative scheme in section 4. That Act is repealed by clause 34 of this Bill.

6 Health Practitioners Legislation Amendment Clause 8 amends section 9 consequent to the amendments of the definition of the health practitioner registration Acts. The amendment clarifies that former registrants under the repealed health practitioner registration Acts will continue to be subject to the Act. Clause 9 amends section 18 to provide that where a panel is to hear a matter relating to a complaint by a user or a user's representative, the panel must include at least 1 member who is the same gender as the user. Clause 10 amends section 32 to provide that where the tribunal is to hear a matter relating to a complaint by a user or a user's representative, either the constituting member or at least 1 of the assessors must be the same gender as the user. Clause 11 amends section 41 to provide that a person who ceases to be a registrant is disqualified from being a member of a professional panel of assessors. The amendment also disqualifies persons whose registration is cancelled or suspended in another State or subject to conditions or undertakings from being members of a professional panel of assessors. Clause 12 amends section 42 to provide a reserve power for the Minister to appoint members of a professional panel of assessors without publicly advertising the vacancy or consulting with the board or the profession. This power may only be exercised where the secretary of the professional conduct review panels or the registrar of the tribunal advises the Minister that there is an urgent need to appoint another panel member because the matter is one which is likely to raise issues of a specialist or technical nature and none of the existing members have the appropriate background or skills or those members who do so are not available for a particular hearing. Clause 13 amends section 176 to provide a power for a panel to delegate the undertaking of a pre-hearing conference to a panel member. This amendment provides for greater flexibility in undertaking pre-hearing conferences. Clause 14 amends section 190 to clarify that the test for determining whether an order is the least onerous in the circumstances is a subjective one. Clause 15 amends section 191 to provide that the panel may give a thing produced at a hearing to the secretary to keep pending an appeal related to the hearing. This amendment is necessary because a panel ceases to exist once the hearing is concluded and, consequently, cannot keep the thing itself.

7 Health Practitioners Legislation Amendment Clause 16 amends section 219 to require the tribunal to advise a registrant who is the subject of disciplinary proceedings of the effect of section 381C or section 381G where relevant (see clause 24, below, for a discussion of the effect of these sections). Clause 17 amends section 231 to clarify that the test for determining whether an order is the least onerous in the circumstances is a subjective one. Clause 18 amends section 262 to clarify that the mere fact that the tribunal hears part of a matter in camera does not, of itself, prohibit a board from identifying the registrant concerned in any information it provides to other registrants. Clause 19 amends section 264 to clarify that the mere fact that the tribunal hears part of a matter in camera does not, of itself, prohibit a board from identifying the registrant concerned in any information it provides in its annual report. Clause 20 amends section 310 to clarify that the provision applies to laws made by jurisdictions within foreign countries as well as by the country itself. Clause 21 amends section 311 to provide for consistency with section 312(5). This clause also modifies the minimum timeframes for making submissions under this section. Clause 22 inserts a new division 1 (sections 367A367D) into part 11 and a division 2 heading. Division 1 is concerned with routine evidentiary matters to facilitate proceedings under the Act (for example--removing the necessity to prove certain appointments and authorities). Clause 23 amends section 371 to provide for consistency with the 13 health practitioner Bills in respect of the limitations for starting summary proceedings. Clause 24 amends section 381 to provide for consistency of terminology with the 13 health practitioner Bills. This clause also inserts a requirement for a board to return a registrant's certificate of registration (or issue a new certificate) immediately after a suspension ends. Clause 25 inserts a Division 2A (sections 381A381I) and Division 2B (381J381K).

8 Health Practitioners Legislation Amendment Division 2A clarifies that where a registrant holds general registration and specialist registration or registration as a dental technician and registration as a dental prosthetist, action may be taken under the Act in respect of one or both types of registration. In general, different actions may be taken in respect of different types of registration, however, where the registrant's general registration or registration as a dental technician is suspended or cancelled under an Act other than a health practitioner registration Act (eg the Health Practitioners (Professional Standards) Act 1999 or the Mutual Recognition (Queensland) Act 1992), the registrant's specialist registration or registration as dental prosthetist is, in the absence of a contrary decision on appeal, affected in the same way. The mandatory suspension or cancellation of specialist and dental prosthetist registration under these limited circumstances is appropriate because general registration and registration as a dental technician are prerequisites for these types of registration and the approach is consistent with that taken under the relevant health practitioner registration Bills. Division 2A also specifies additional matters to be included in the notice given where a registrant's general registration or registration as a dental technician is cancelled or suspended and the registrant also holds specialist registration or registration as a dental prosthetist. The notices required by sections 381D and 381H must specify that there is no appeal in respect of the suspension of specialist registration or registration as a dental prosthetist where the suspension occurs pursuant to this Division. It should be noted that there is a right of appeal in respect of the decision to take action against a registrant's general registration or registration as a dental technician and, if such an appeal by a registrant is upheld, the registrant's specialist registration or registration as a dental prosthetist is affected in the same way. Division 2A further specifies that any decision made about the recording of a suspension of a registrant's general registration or registration as a dental technician also applies to the registrant's specialist registration or registration as a dental prosthetist. Division 2B specifies the requirements for amendment or replacement of certificates of registration where certain actions are taken under the Act. Clause 26 inserts new sections 385A-C.

9 Health Practitioners Legislation Amendment Section 385A requires a registrant who has been convicted of an indictable offence or an offence against a corresponding law (as defined) to give the board notice of the details of the conviction within a specified period. By virtue of section 36 of the Acts Interpretation Act 1954, this provision also requires notification of convictions of offences in other jurisdictions which would be indictable offences in Queensland. Section 385B requires a registrant who is a party to certain proceedings in court to notify the board of the judgement in relation to those proceedings or any settlement of the proceedings (or part of the proceedings) within a specified period. So far as proceedings in a Queensland Court are concerned, the provision needs to be read in conjunction with the Uniform Civil Procedure Rules 1999 which specify when proceedings start. Section 385C requires a registrant who is subject to disciplinary or other action under a corresponding law to notify the board of the details within the specified timeframe. Clause 27 inserts a new section 386A which provides that the persons specified in subclause (3) are not civilly liable for an act or omission, made honestly and without negligence, under this Act. Instead the liability attaches to the board. It should be noted that to the extent that board members are involved in disciplinary proceedings they have an immunity under section 386 of the Act. Clause 28 amends section 392 to authorise disclosure of confidential information to a foreign regulatory authority in order for the authority to perform its functions. Clause 29 omits section 396. The 13 health practitioner Bills provide for meetings by distance or flying minute. It is intended that those provisions may be utilised for board meetings for the purpose of the Health Practitioners (Professional Standards) Act 1999. Clause 30 inserts a division heading before section 399. Clause 31 amends section 403 to provide for the review of certain conditions imposed under repealed provisions of the Medical Act 1939. Clause 32 inserts a division heading and a new section 405. The purpose of section 405 is to deal with transitional matters arising out of the repeal of the health practitioner registration Acts and the consequent effect on definitions contained in the Act. Section 405 provides that despite the repeal of the health practitioner registration Acts, the Act continues to apply

10 Health Practitioners Legislation Amendment to persons who were registered under a repealed health practitioner registration Act and continue, after repeal, to be a registrant withing the meaning of the Act. For example, if disciplinary proceedings had been started against a person who was a registrant under a repealed health practitioner registration Act, and continued to be a registrant withing the meaning of the Act, the proceedings may continue. Section 405 also provides that the Act continues to apply to an act or omission by the registrant before the repeal of the repealed Act. For example, if the registrant failed to comply with a provision of a repealed health practitioner registration Act before the repeal of that Act, the failure continues to be a ground for disciplinary action under the Health Practitioners (Professional Standards) Act 1999. (It should also be noted that the amendments to section 9, above, allow a complaint against a currently unregistered person to be made and dealt with under the Act where the matter the subject of the complaint occurred when the person was registered under a repealed health practitioner registration Act). Clause 33 amends the definition of "foreign disciplinary body" and "foreign regulatory authority", replaces the definition of "chairperson" and inserts new definitions of "certificate of registration" , "certificate of specialist registration", "corresponding law" and "repealed registration Act" in the Dictionary. PART 4--AMENDMENT OF INDY CAR GRAND PRIX ACT 1990 Clause 34 specifies that part 4 amends the Indy Car Grand Prix Act 1990. Clause 35 ensures the wording of this paragraph is consistent with the approach taken elsewhere in this provision. PART 5--REPEAL OF MEDICAL ACT AND OTHER ACTS (ADMINISTRATION) ACT 1966 Clause 36 repeals the Medical Act and Other Acts (Administration) Act 1966.

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